Special Operations Chief Edward Gallagher, a Navy SEAL with 19-years in the Navy, has been charged with war crimes related to the stabbing death of a detainee in Mosul in 2016-2017. Gallagher is currently confined to the Navy brig in Miramar awaiting word on whether he will receive a court-martial for this incident, which is pending review by an Admiral. He stands accused of murder, aggravated assault, obstruction of justice and professional misconduct. He’s hired two criminal defense attorneys, and is considering filing a civil rights lawsuit against the Naval Criminal Investigative Service (NCIS) for misconduct themselves.
And he may have solid ground on which to make such claims. In June, a military appeals court threw out the rape conviction of another San Diego based Navy SEAL, and found that the Navy’s Judge Advocate General, Vice Adm. James Crawford III, meddled in the case by exerting unlawful command influence over it. The SEAL accused of rape has been exonerated and now a three-star JAG is facing an investigation himself.
There is a general perception that unlawful command influence abounds in the military currently, so Chief Gallagher may have a story to tell. Over the last ten years, allegations of serious criminal conduct have swirled around the Navy’s SEAL Teams — especially around DEVGRU — which is a function of the kinds of operations they are so often involved in. Many missions are classified, with oversight within the command only — outsiders can’t even question it. But this trial is about war crimes — not rape or unlawful command influence. It’s about attempts to rein in a SEAL that is accused of being out of control, and the spotty record of actually getting war crimes trials to come to a fair and just verdict will all come into play here.
That being said, Gallagher has his defenders on social media who really don’t care if an ISIS fighter in custody is killed by a knife, gun, or by any other means. As screwed up as rules of engagement can be, as arcane as the laws of armed conflict can seem, they are there for a reason and are binding on members of the US Armed Forces, word for word. While it’s most true that we face a barbaric and uncivilized enemy in ISIS, we ourselves are not invited to defend Western culture and civilization by being barbaric ourselves. Or so the reasoning goes anyway. Civilization is only a generation or so deep. If it isn’t upheld in ways both large and small, it all can slip away into barbarity and atrocity. And once things slip that far, it’s very hard, bloody and painful to try and get civilization back.
Which brings us to the reality that war crimes are generally charged by the victor against the vanquished, and the record of justice being dispensed in these trials is spotty. In this case, we aren’t really the victors yet, and are charging our own people with war crimes. There’s reason to wonder if real justice can even be done here.
The Malmedy Massacre during the Battle of the Bulge serves as a good illustration. In the opening hours of this German offensive in December 1944, part of the US 285th Field Artillery Battalion was moving by truck to new positions when the spearhead of an SS Panzer Group blundered into them on the Baugnez crossroads in Belgium. Armed only with rifles, the US troops surrendered. The Germans herded them into a snowy field and mowed down 84 American soldiers with machine guns, and then went body by body shooting those still breathing in the head. When the frozen bodies were later found many still had their hands tied behind their backs. Massacres of POWs and civilians continued for days in 4 other Belgian towns the Kampfgruppe Peiper moved through. The tally would end up being 362 US POWs murdered, along with 111 civilians in just 5 days.
Following the war, some 70 people were charged with war crimes related to the massacres by Kampfgruppe Peiper — 43 death sentences were handed down, along with 22 life sentences. Not a single execution was ever carried out, and the longest prison terms served ended up being about 10 years. The reason was overzealous prosecution resulting in irregularities in the trials of the defendants. Their sentences were commuted or reduced as a result of the injustices done to the accused in trying to get justice for the victims.
In contrast to this, the Captain of the USS Indianapolis received a court-martial for having his cruiser torpedoed by a Japanese submarine. The charge specified he hazarded his ship by not zigzagging in his course. Incredibly, the US Navy flew in the captain of the Japanese submarine to testify against him. Instead, Commander Hashimoto testified that zigzagging would have had no effect. Convicted, and sentenced only to have his seniority stripped, Capt McVey continued to be promoted, retiring as a Rear Admiral.
Normally, a conviction by court-martial is a career-ending event for a Naval Officer, but even the Navy seemed to know that what happened to McVey was unfair. Nevertheless, McVey never got over the loss of his ship, most of its crew, and then being blamed for it. In November 1968, McVey stepped out onto his back porch in the morning cool, put a gun to his temple, and pulled the trigger. In his other hand was a toy sailor — a boyhood toy he carried as a lucky charm.
It took 56 more years for the Navy to correct its error and issue a memorandum that cleared him of culpability.
I guess that’s the real point here. While we hope Chief Gallagher is found innocent of the charges and retires in peace with his family, that has to come after the military justice system gives him a fair trial — free of unlawful command influence and reaching a verdict based solely on the evidence presented.